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This article was written by Lisa Taylor - Senior Associate - Gympie

Lisa holds a Masters in Law and a Bachelor of Laws. She also holds a Graduate Diploma of Legal Practice from the Australian National University and is admitted as a Lawyer to the Supreme Court of Queensland and as a solicitor to the High Court of Australia. As a senior associate, Lisa’s focus is on advocacy. She ensures all clients...

The Defence of Mistake of Fact (Qld)


The Queensland criminal code sets out a number of legal defences that are available in respect of certain criminal offences. One of these is the defence of honest and reasonable but mistaken belief. This article outlines how the defence of mistake of fact operates in Queensland.

When is the accused’s state of mind relevant?

Chapter 5 of the Criminal Code 1899 sets out the limits of criminal responsibility. Under the Criminal Code, unless a particular state of mind is expressed as an element of the offence itself, the state of mind of the accused is irrelevant.

Many offences specify a particular state of mind that the accused must have had in order to be found guilty of the offence – for example, ‘intentionally causing injury’ or ‘recklessly causing injury.’ In these cases, ‘intent’ or ‘recklessness’ are known as the ‘mental element’ of the offence.

Strict liability offences

Offences that do not involve a mental element, but where the defence of mistake of fact is available are known as strict liability offences. Section 24 of the Criminal Code provides that a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of affairs is not criminally responsible for the act or omission to any greater extent than if the reality had been what the accused believed.

How is a mistaken belief assessed?

The mistaken belief must be both subjectively honest and objectively reasonable. Essentially, if a defendant acted or made an omission under an honest and reasonable but mistaken belief that a state of affairs existed they are not criminally responsible to any greater extent than they would be if the state of affairs had existed.

If a jury was to conclude that the real state of affairs existed as detailed in the offence but accepted that the defendant honestly and reasonably held a mistaken belief, the defendant could not be held criminally responsible for their act or omission.

A mere mistake is not enough to make out the defence. The mistake must have been honest and reasonable and a belief that was genuinely held by the defendant. To be reasonable, the belief must be one held by the defendant, in their particular circumstances, on reasonable grounds.

Burden of proof for mistake of fact defence

If a defendant raises the defence of mistake of fact there is no burden on them to prove that they made a mistake of fact. It is for the prosecution to satisfy beyond a reasonable doubt that the defendant did not act under an honest and reasonable mistake of fact. If the prosecution fails to do so, then the defendant cannot be found guilty.

The prosecution must therefore satisfy the court beyond a reasonable doubt that:

  1. The defendant did not honestly hold the relevant mistaken belief about the facts; or
  2. The belief was not reasonable in the defendant’s circumstances.

Absolute liability offences

The defence of mistake of fact is expressly excluded from some offences. These offences are known as absolute liability offences and they are offences where the state of mind and knowledge of the accused is irrelevant.

Absolute liability offences include a lot of traffic offences – for example, drink driving, where an honest and reasonable but mistaken belief by the accused that they were below the legal BAC limit, is not a defence.

Sexual Offences and Mistake of Fact

A defence is available for sexual assault or rape offences if the act was done under an honest and reasonable, but mistaken, belief that the complainant consented. The mistake must be honestly and reasonably held and there must be evidence which raises this possibility.

In September 2019, the Queensland Law Reform Commission (QLRC) reviewed the state’s consent laws and the excuse of mistake of fact in sexual assault and rape offences. In June 2020, it published a report entitled ‘Review of consent laws and the excuse of mistake of fact’. The main purpose of the report was to provide recommendations regarding consent and mistake of fact in relation to sexual offences and proposed changes to the Criminal Code Act 1899 to codify existing law principles regarding consent and mistake of fact specifically related to sexual offences and rape.

The Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020 (the Bill) was reintroduced into Queensland Parliament on 26 November 2020 and adopts the QLRC’s recommendations.

The amendments in the Bill codify existing case law principles by expressly providing that:

  1. A person is not taken to give consent to an act only because they do not say or do anything to communicate that they do not consent (proposed subsection 348(3));
  2. If a person continues to do an act after consent is withdrawn by words or conduct, then the act is done without consent (proposed subsection 348(4));
  3. In determining whether a defendant did an act under an honest and reasonable, but mistaken, belief that the complainant gave consent to the act, regard may be had to anything they said or did to ascertain whether the other person was giving consent to the act (proposed subsections 348A(1)-(2); and
  4. In ascertaining whether the defendant held a reasonable mistaken belief, regard may not be had to their voluntary intoxication. (proposed subsection 348A(3)).

Mistake of fact and consent

The introduced section (348A of the Criminal Code) expressly outlines the legal principles regarding mistake of fact in relation to consent as follows:

  1. Whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that another person gave consent to the act.
  2. In deciding whether a belief was honest and reasonable, regard may be had to anything the person said or did to ascertain whether the other person was giving consent to the act.
  3. In deciding whether a belief was reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.

Current case law provides that a jury must regard the personal circumstances of a defendant in deciding whether they acted under an honest and reasonable, but mistaken belief about consent. However, the defendant’s intoxication is irrelevant in deciding whether this belief was reasonable.

In the context of the amended legislation, the test for the defence of honest and reasonable mistake of fact is somewhat between a subjective and an objective test. The jury must be persuaded that the prosecution has proved beyond a reasonable doubt that the accused was mistaken regarding the complainant’s consent to the sexual conduct.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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